Battle over Riverbend coal ash continues

The Catawba Riverkeeper Foundation won’t know until next month at the earliest whether it can proceed with its lawsuit to halt contamination at a Charlotte reservoir from Duke Energy Carolinas’ shuttered Riverbend Steam Station.

The foundation contends it should be allowed to sue Duke because the N.C. Department of Environment and Natural Resources has not properly enforced federal clean water standards. But a federal magistrate has recommended the case be dismissed. He said a court case and proposed settlement DENR worked out with Duke last month prove the state is engaged in a “diligent prosecution” of the issue.

U.S. District Court Judge Max Cogburn Jr. held a hearing Wednesday that was supposed to deal with that recommendation. But after brief arguments from both sides, he put off a decision on the magistrate’s recommendation. He ruled Duke must be given a chance to respond to a new filing the foundation’s attorneys made last week.

The Southern Environmental Law Center, representing the foundation, filed what it called a “supplemental memorandum” in the case, alleging the situation had “changed dramatically” since the magistrate’s recommendation in December.

It cites the Feb. 2 accident in which a broken pipe under the main ash pond at Duke’s Dan River plant sent up to 39,000 tons of coal ash into the river. It also notes a subsequent grand jury probe and DENR’s decision to ask a state judge to suspend his consideration of a proposed settlement concerning Duke’s ash ponds at Riverbend and an Asheville site.

Frank Holleman, one of the foundation’s attorneys, told Cogburn the case the magistrate cited as proof the state was diligently prosecuting coal ash issues is now the subject of possible criminal investigation. And he said DENR has suspended consideration of its proposed settlement. All of that, he argued, completely undermined the finding that the state is effectively attacking the coal ash issue.

Brent Rosser, representing Duke, argued the SELC was raising issues that were new to the case. He contended the foundation’s attorneys cited no authority for its positions in the new filing. And he contended the memo mischaracterized some events. He noted DENR has said it will have recommendations on the settlement by next week, disproving it was causing a long delay in enforcement.

Cogburn agreed with Duke. “We’re going to move this case along,” he told the foundation’s lawyers. “But I have got to give them some time to respond.”

He ordered the foundation to file an additional brief by March 25. He said Duke should respond by April 9.

Holleman told Cogburn the delay was reasonable but said the foundation does not want the case to drag out. “We remain concerned that Charlotte’s drinking water is at risk,” he said.